Dissenting Opinion b-x
Mr. Justice Musmanno:After 36 years of employment with the Bell Telephone Company in Philadelphia, Maurice T. Shore died on July 29, 1952, leaving a good record as a workman and a poor one as a husband. He beat his wife and threatened her life, on one occasion taunting her to “put your head in the oven twice and bring it out once.” He consorted with other women and when his wife objected to his immoral conduct he invited her “to get the Hell out.” His meretricious behavior continuing, Mrs. Shore left their common domicile on October 16, *4521845. She returned shortly thereafter seeking to effect a reconciliation, but he repulsed her. When, one day, she sought to enter their apartment in order to obtain her personal effects, he barred her entrance, leaving her belongings on the outer doorstep. Mrs. Shore never relinquished efforts to rejoin her husband, and it cannot be questioned that had she instituted divorce proceedings against him, she -would have been entitled under the law to a decree a vinculo matrimonii on the grounds of malicious desertion.
This brief narrative of the shipwreck of the matrimonial bark of Maurice and Elizabeth Shore is vital in considering the present case not because of any legal significance per se, but because of a clause in the Bell Telephone Plan of Employees’ Pension, Disability Benefits and Death Benefits, Section 7, subsection 4(a) of which provides that “in the event of . . . death by sickness, the maximum Sickness Death Benefit . . . shall be paid ... to the wife of the deceased employee if living with him at the time of his death . . .”
Upon Maurice Shore’s death, Mrs. Shore applied for the maximum death benefit payable under the Plan, namely, $6,180. The Bell Telephone Company rejected the claim, asserting that since Mrs. Shore -Was not living with her husband at the time of his demise, she could not qualify under Section 7, subsection 4(a) above cited. However, the Company conceded some payment was in order under Subsection 4(6) which provided that if there was lacking sole beneficiaries under Subsection 4(a), benefits would go to any other person or persons entitled to receive support from the decedent before his death.
For nine years prior to July, 1952, Maurice Shore was paying his wife, under a Court order, the sum of $20 per week for maintenance. He also had contributed $6 per week towards the support of his mother. The *453Employees’ Benefit Committee of the Company, ruling that Mrs. Shore was disqualified as a sole beneficiary under Subsection 4(a), proceeded then to administer benefits under Subsection 4(b), awarding $1,044 to the widow in installments of $87 per month and $313.20 to the decedent’s mother in installments of $26.10 per month.
Mrs. Shore was dissatisfied with this decision and instituted an action in assumpsit against the Bell Telephone Company for the total sum of $6,180 payable under 4(a). Court of Common Pleas No. 4 of Philadelphia ruled that the Committee was justified in refusing payments under 4(a) since Mrs. Shore was not living under her husband’s roof when he died, but it decided further the Committee erred, under 4(b), in awarding total benefits of only $1357.20. The Court declared that the Committee should have distributed the entire amount of the death benefits, to wit, $6,180, using the same ratio (4 to 1) that it had adopted in distributing the $1,357.20.
I believe the Court below was correct in holding that Subsection 4(b) called for payment of the entire amount of the maximum death benefits and that the Committee had abused its discretion in awarding a lesser sum. The Bell Telephone Company’s Pension and Benefits plan under consideration is not, as might be supposed, a unilateral arrangement, with the Company bestowing gratuities among its employees and their dependents. Although supposedly financed by the Company alone, the Death Benefits Plan actually represents an enterprise in which the whole consuming public participates. When the Pennsylvania Public Utilities Commission permitted the Bell Company to increase its rates it decided, inter alia, that operating expenses included costs for maintaining plans for pensions, accident disability benefits, sickness disability benefits and death *454benefits.* To allow the Committee not to pay less than the total payment authorized under the Plan amounts to a deception practised on the consumers as well as the employees.
The consumers were assessed certain amounts not only for services rendered to them but for the retirement, disability and death benefits set up for employees. The employees entered and remained in the employment of the company under a contract which guaranteed them or their beneficiaries certain retirement, disability, and death benefits. Those advantages cannot be taken away by the company. While the Employees’ Benefit Committee must perforce be allowed some discretion in the performance of its duties, it may not depart from the equitable and fair standards set up by the Plan, taken as a whole.
However, though the Court below properly decided that under Subsection 4(b) of the Plan the Company was required to pay the total amount of $6,180, it improperly concluded that the widow could not recover under Subsection 4(a) : “It is not necessary for us to determine the meaning of the phrase diving with’ as used in defendant’s Plan. The real question is, did the Committee in administering the Plan act in good faith when they found that plaintiff was not diving with’ her husband at his death. It is our opinion that the Committee did act in good faith, regularly, and upon the merits of this question, and that its decision should not be attacked or set aside by us.” I believe the Court erred in this observation. The question of good or bad faith is not involved here at all. What we have before us is a question of realities. A tribunal cannot rule that 2 and 2 make 6 and be excused from responsibility for so bizarre a conclusion on the basis that it honestly *455believed that its arithmetic was blemishless. The phrase “living with”, as found in Subsection 4(a) must be placed over the picture produced by all the events in the case and then evaluated against the background of those events. The lower Court failed to do this.
It is fundamental law that goes back to the first prehistoric manifestation of inchoate justice that no one shall reap a benefit from a malefaction, and this rule applies whether the malefactor be alive or speaks from the grave. Maurice Shore had a legal duty to support his wife when alive and a posthumous obligation to assure her all benefits accruing to her as his legal mate. When the Bell Telephone Company Benefits Plan went into effect, Mrs. Shore immediately became a beneficiary thereof as much as if she punched the time clock with her husband each morning and worked at his side all day. Her right to death benefits was as much a chose in action as his right to pension. All these prerogatives were inextricably woven into the contract of employment. So long as Mrs. Shore remained the decedent’s spouse and maintained herself legally and morally in that position, he could not deprive her of benefits rising from the contract and ensuing Plan of Death Benefits. If Mrs. Shore had abandoned her husband, or had refused him her society, companionship and conjugal affection, she would have cut herself off from the Plan. She, however, did not do this. The facts indeed are all to the contrary. The rectitude of her conduct is a matter of judicial determination. Maurice Shore was ordered to pay his wife $20 per week because she was his wife and because he would not live with her.
The decision in Auch Estate, 174 Pa. Superior Ct. 406 illustrates the principle of law involved here. In that case the wife left the marital abode for a cruise to Bermuda “for health reasons.” While away, her husband unsuccessfully attempted to obtain a divorce. Hus*456band and wife never lived together again after that. On the death of Mr. Auch, Mrs. Auch filed in Orphans’ Court a petition for widow’s exemption under the Fiduciaries Act of April 18, 1949, P. L. 512, §211. Her petition was contested on the ground that since she had left her husband, she had forfeited the widow’s exemption. The Superior Court affirmed the awarding of widow’s exemption, saying: “. . . the record fails to reveal any evidence that appellee [Mrs. Auch] at any time left the matrimonial habitation with an intent not to return.
“From the circumstances surrounding appellee’s departure on a two weeks’ cruise to Bermuda it is difficult to perceive how appellants can infer an intent on the part of appellee to withdraw from or abandon the marital domicile and terminate the family relationship. . . . Upon her return from the trip to Bermuda appellee found that her husband had left their common domicile, taking all his personal belongings, without explanation or justification. He never returned to the marital abode thereafter although he had access thereto at all times. ...
“Under these circumstances the cessation of the family relationship must be considered as having been caused solely by the husband. Where the family relationship is broken through the fault of the husband, the widow does nob forfeit her right of exemption.” (Emphasis supplied). Paraphrasing what was said in the Auch case, I would say here that where the family relationship is broken through the fault of the husband, the widow does not forfeit her rights under the Bell Plan of Employees’ Pension, Disability Benefits and Death Benefits.
The case of Sheaffer v. Penn Dairies, 161 Pa. Superior Ct. 583 is another one which throws into base re*457lief the principle here being enunciated. Section 307 of The Pennsylvania Workmen’s Compensation Act, 77 PS §562, provides compensation for the widow of a deceased employee if she “was living with her deceased husband at the time of his death, or was then actually dependent upon him.” Mr. and Mrs. Sheaffer were not actually living with each other when he died as the result of an accident in the course of his employment. They had not yet set up a common domicile. They had been married less than two months when his death occurred and for domestic reasons, entirely compatible with reciprocal loyalty and devotion, each had continued to live in the separate rooms in the houses in which they had dwelt prior to the marriage. The Board of Compensation concluded that since the husband and wife did not share the same house they were not living together under contemplation of The Pennsylvania Workmen’s Compensation Act. The Superior Court properly held to the contrary: “ ‘Living with’ does not always import physically dwelling together in the same house, (citing cases) Whether parties are ‘living with’ each other is a question of fact, but it is to be determined, not by consulting only one facet of the relationship, but by inspecting the whole picture. . . .
“The board, as its finding indicates, construed the phrase too narrowly, and having discovered the one fact that the parties did not occupy the same living quarters, rested its finding that they were not living together solely upon that circumstance. If the board had found the facts indicated by the evidence which we have recited, assuming that claimant’s testimony was credible, we believe it might have inferred the ultimate fact that claimant lived with the deceased. Its error consisted in concentrating its attention upon one item of the proof, ignoring the rest of the testimony, and without finding the specific facts, reached a conclusion *458which, upon its face indicates failure to consider all the evidence.”
There are two appeals in this case, the widow claiming that she is entitled to the full amount of $6,180, the defendant Bell Telephone Company asserting it is required to pay out only a total of $1857.20, to both widow and mother of the deceased employee. I would reverse the judgment of the lower Court and order that a judgment be entered in favor of the plaintiff Elizabeth H. Shore in the amount of $6,180, less $1,044 already paid to her on account.
Pittsburgh v. Pennsylvania PUC, Appellant, 370 Pa. 305.